David Dowaliby (Photo: Jennifer Linzer)
David Dowaliby was convicted of murder based solely
on testimony that the Appellate Court found preposterous
David Dowaliby was convicted in 1990 of the murder of his adopted daughter, 7-year-old Jaclyn Dowaliby, who had disappeared from the home she shared with her parents, grandmother, and younger brother, Davey, in Midlothian, Illinois, a south suburb of Chicago.
David and his wife, Cynthia, Jaclyn's biological mother by a prior marriage, reported Jaclyn missing on September 10, 1988. They told police they had discovered a broken basement window through which an intruder must have entered to abduct Jaclyn. Investigators quickly concluded, however, that the window had been broken from inside in an effort to conceal what actually had happened. That was not illogical: More glass had been found on the ground outside than inside the basement. When a window is broken, most glass goes in the direction of the force.
Jaclyn's body was found on September 14 in weeds and brush behind the parking lot of an apartment complex in nearby Blue Island, Illinois. Death was attributed to strangulation. Two days later, police canvassed residents of the apartments behind which Jaclyn's body had been found. Among those interviewed was Everett Mann, who had aspired to be a police officer but had been rejected because he suffered from bipolar disorder. Mann claimed that at about 2:00 a.m. on September 10 he had seen someone with "a large, straight nose" pulling away from what he later learned was the location of the body. He said he could not tell whether the person was a man or a woman, but thought he or she was Caucasian. He described the car as dark-colored—"dark blue, navy blue, black, dark brown."
Later, at the Midlothian police station, Mann was shown an array of photographs of possible suspects and asked which nose structure most resembled the one he had seen. "Number four," Mann said—David Dowaliby. In subsequent interviews, Mann's description of the car changed. First, it had been merely dark-colored. Then it became midsized. Then "the latest seventies version of the Chevy Mailbu." Finally, "about a 1979 Chevy Malibu."
Cynthia Dowaliby owned a 1980 Chevrolet Malibu. It was light blue, not dark, but the police surmised that it might somehow have appeared to be dark. The car was forensically examined, but there was no evidence that a body had been transported in it.
Robert Clifford, the head of south suburban prosecutions for the Cook County State's Attorney's Office, was skeptical of Mann's identification. He enlisted Paul Greves, the Blue Island police chief, to join him in an experiment—a reenactment of Mann's identification of a man with a big nose from 75 yards away. They concluded that it was impossible to see a nose structure from that distance.
Clifford was not in charge of the prosecution. Patrick O'Brien, the head of the office's Felony Trial Division, was. Based on Mann's purported identification of David and the assumption that the window had been broken from inside, O'Brien obtained grand jury indictments on November 22, 1988, charging David and Cynthia with murder and concealing a homicide. They were arrested immediately.
The very next day, O'Brien received a forensic report incontrovertibly establishing that the force that had broken the Dowalibys' basement window had come from outside. Apparently, perhaps to minimize noise, whoever had broken the window had punctured it and then removed several large pieces of the glass, placing them on the ground.
Undaunted by the forensic findings, O'Brien plowed ahead. The Dowalibys remained in jail until friends and family members posted bond, securing Cynthia's release on December 15 and David's the next day.
While the case was pending, Robert Clifford, who had left the State's Attorney's Office, informed the Dowalibys' defense lawyers that Paul Greves had a tape-recording of the police interviews with Mann. In response to a defense subpoena, O'Brien surrendered the recording. It had been withheld in violation of the law, but O'Brien claimed he had been unaware of its existence until he asked Greves about it after receiving the subpoena. Once in defense hands, the recording assured that the strength of Mann's identification could not improve.
On April 5, 1990, after several days of jury selection, the Dowalibys' joint trial opened before Cook County Circuit Court Judge Richard E. Neville. At the conclusion of the prosecution case on May 1, Neville directed a verdict of not guilty for Cynthia, holding that the evidence against her was insufficient as a matter of law to sustain a guilty verdict.
Although the only substantive difference in the evidence against her and that against David was the purported identification of him by Everett Mann, Neville left David's fate to the jury. On May 3, after 14 hours of deliberation, the jury convicted David. Neville sentenced him to consecutive terms of 40 years for murder and 5 years for concealing a homicide.
The case had received extensive media coverage, much of which the Dowalibys regarded as unfair. They had, however, come to trust David Protess, a professor at Northwestern University's Medill School of Journalism. In July 1990, the Chicago Tribune published a two-part series by Protess based on the interviews with the Dowalibys. As a result, one of the trial jurors contacted Protess, telling him that she regretted the verdict but had "caved in" to pressure from other jurors.
Protess proposed writing the juror's story for the Tribune, but the editors rejected it, saying that it was "too controversial to have an outsider write it—especially someone who has a point of view on the case." Protess then took the story to Paul Hogan, an investigative reporter for WMAQ-TV, Chicago's NBC-owned and operated channel, which gave the story major play.
In the months ahead, Protess and Hogan worked together on other investigative stories about the case. They discovered the undisclosed experiment that had led Clifford and Greves to conclude that it was impossible to see a nose structure from 75 yards away and that Mann had been diagnosed as suffering from bipolar disorder. Hogan also broadcast an interview with Mann, who noted that O'Brien, the lead prosecutor, had a nose more prominent than David's. If O'Brien's photo had been in the array he was shown, Mann proclaimed on camera, he would have identified O'Brien.
Although the reporting was irrelevant to David's then-pending direct appeal, it created a climate of public opinion favorable to the Dowalibys and destroyed Mann as a witness at a possible retrial, which was widely anticipated by the Chicago legal community.
There would be no retrial, however. On October 30, 1991, the Illinois Appellate Court unanimously reversed David's conviction, without the possibility of a retrial, holding that Neville had erred in not directing a verdict in David's case, as he had done in Cynthia's.
Cook County State's Attorney Jack O'Malley announced that he would appeal to the Illinois Supreme Court and, meanwhile, would oppose David's release on bond. In an editorial on Sunday, November 2, the Tribune blasted O'Malley's "tough guy stance"—calling his opposition to bond "cruelly unnecessary at this juncture."
On November 11, over O'Malley's objection, the Supreme Court set bond and, after positing it, David was released two days later. He had spent 583 days behind bars, counting 24 days in jail after his 1988 arrest. On February 5, 1992, the Supreme Court rejected O'Malley's appeal, officially ending the case.
Nine months later, NBC's "Unsolved Mysteries" broadcast a segment on the case, resulting in a tip that an early suspect in the case—Timothy Guess, a paranoid schizophrenic brother of Jaclyn's natural father—had provided a false alibi for the night Jaclyn disappeared. Guess had told police and the FBI that he had spent the entire night at an all-night restaurant in south suburban Harvey.
Two waitresses had corroborated the alibi at the time, but they told Protess and Hogan that in fact Guess had been there only briefly around 9:30 p.m. They said they had lied because they believed that the Dowalibys were guilty and did not want to get involved. Several customers who had been at the restaurant, who had never been questioned by police, also said Guess had not been there.
It addition, Protess and Hogan learned that another waitress at the restaurant, Margaret Murphy, lived in the apartment complex where Everett Mann lived—and that Guess often had driven her home. Murphy told Hogan that she had never been questioned by police but, before the Dowaliby trial, prosecutors had instructed her not to talk to the defense lawyers.
On December 17, 1992, Protess and a colleague conducted a taped interview with Guess, who spoke freely of his mental illness. He said he had begun hearing voices when he was a young child, had been in and out of mental institutions, had suffered repeated blackouts, and had taken various drugs, legal and illegal, for much of his life.
Since age 16, Guess said, he had been guided by "a spirit" who "gives me psychic powers"—powers that enabled him to precisely describe the layout and interior of the Dowaliby home, where he had never been. When asked how to get to Jaclyn's room, he said, "I walked past Davey's room," quickly adding, "That was the spirit talking, not me. I didn't say nothin'. I just released information."
Guess adamantly insisted that he had been at the Harvey restaurant the entire night that Jaclyn disappeared. When asked why customers and waitresses would say otherwise, he explained: "Maybe I was invisible that day. The spirit can help me do that. I was there physically, but no one could notice me."
On January 4, 1993, a spokesman for the Cook County State's Attorney's Office announced that the investigation into Jaclyn's murder had been reopened, but nothing came of the investigation. In 1996, CBS aired a two-part, made-for-TV movie about the case—"Gone in the Night" based on a book by the same title—featuring extensive verbatim quotes from Timothy Guess.
— Rob Warden